Perry as Politics

Posted Thu, August 18th, 2011 1:57 pm by Dale Carpenter

The following contribution to our same-sex marriage symposium is written by Dale Carpenter. Professor Carpenter teaches constitutional law, the First Amendment, and sexual orientation and the law at the University of Minnesota Law School. He is a contributor to the blog, the Volokh Conspiracy.

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So far, on balance, the Perry litigation has been a setback for the cause of gay marriage as a matter of politics.

The qualifications to that conclusion are important. “So far” recognizes the early and tentative stage of the contest. The case may yet result in, say, a Supreme Court victory declaring a federal constitutional right to marriage for same-sex couples. Whatever one thinks of the constitutional arguments for SSM, a Supreme Court mandate would advance the cause by years, maybe decades, as compared to a state-by-state slog through places like Mississippi, which voted to ban gay marriage by eighty-six percent to fourteen percent just seven years ago. Moreover, a Supreme Court victory could be obtained at this point with little fear of a federal constitutional amendment reversing it. The public has come too far in supporting SSM for opponents to be able to muster super-majorities in Congress and three-quarters of the states against it. There would be a few years of drama after such a victory, but it would die off given sufficient time, as it has everywhere else.

“On balance” recognizes that some good has come from the Perry litigation. It's a good thing for gay marriage to be seen as the bipartisan and ultimately conservative cause it is, and Ted Olson's advocacy has helped with that. The district court opinion in Perry, by now-retired Judge Vaughn Walker, was a very fine compendium of the arguments for gay marriage as a matter of policy. For those who paid attention to it, the trial showed how lopsided the public-policy arguments and evidence have become. The poverty of anti-SSM argumentation has likewise been evident in recent legislative debates about it, in which legislators supporting SSM have been vocal and articulate while legislators opposing it have been almost completely silent, as if embarrassed.

Nevertheless, the judgment that the Perry litigation has so far been a net political loss for the cause is based in part on its unfulfilled promise as a tool of public education and in part on the retarding effect it has had on efforts to reverse the ban on SSM in the nation's most populous state.

Consider first the hope that the litigation might prove to be an important tool of public education about the need for SSM. Most lawsuits are not efforts to influence public and legislative debate about the underlying controversy. But litigation involving controversial causes often is at least in part “political lawyering.” That is, even when lawyers and their clients do not expect to win, they do hope their efforts will raise awareness about the problem. They want to bring attention and sympathy to their cause in the judiciary and in the public sphere.

Part of the hope for Perry was that it would educate the public about gay marriage. Having a trial in which SSM opponents could be made to defend their opposition with reasoned arguments, and then be subject to cross-examination, would expose the weaknesses of anti-SSM arguments in a way that thirty-second television ads could never do so. The litigation would show Americans that SSM was a matter of fundamental constitutional rights.

This political-lawyering hope ran up against two hard realities. One was that the expected show never had much of an audience. The Supreme Court ensured that the trial would not be televised. And even if it had been televised, it would never have the draw of a celebrity murder or prosecution for infanticide. I'm transfixed by debates about whether social-science evidence on same-sex parenting is marred by inadequate sample sizes. So are the ten other people who watch C-SPAN. But the general public in a time of multiple wars and a Great Recession? Not so much.

The other hard reality for political lawyering in the Perry litigation was that, as the ballot campaigns involving SSM have shown, Americans are not convinced to support gay marriage by the assertion that it is a civil or constitutional right. They first want to know why something they have always believed in "“ marriage as the union of one man and one woman "“ should be changed. Who would benefit from such a change and why should we care? Who might be hurt? What about the kids? Yes, the arguments for SSM in Perry addressed these matters. But the core policy case was obscured by the doctrinal necessity of casting the cause in the constitutionalese of things like the appropriate level of generality in the definition of fundamental rights and whether sexual-orientation classifications should be subjected to heightened scrutiny.

Liberal neutrality and tolerance "“ the respect for others' rights no matter what underlying moral judgment we make about the way they exercise those rights "“ might convince people that the government should stay out of the bedroom. It will not convince most of them to support SSM because they do not see marriage as a matter of government neutrality. They see it as a form of endorsement or approval.

There is no evidence of which I'm aware that the Perry decision, or the ongoing litigation that produced it, has moved public opinion in California or anywhere else in the direction of support for SSM. Many gay-marriage supporters regard Judge Walker's decision as a wise and sound defense of constitutional principles. But I don't know of any gay-marriage opponents, or even fence-sitters, who read the decision, got to the line that informed them the matter was now “beyond debate,” and were transformed by it. Beyond the small world of people who read judicial decisions, most pay no attention to them. They might have read the first few paragraphs in a newspaper story about the case, or more likely saw something about it on television or the Internet. But persuaded to change their views because a judge rules on a matter of constitutionality? Americans have become sufficiently skeptical about judges to ignore most of what they do.

That leads to the second consideration about the cost of Perry "“ delay in effecting political change. In 2008, when voters approved Prop. 8, gay-marriage supporters in California suffered a terrible defeat in what seemed like a winnable ballot fight. It was just a matter of time, they vowed, before they would put the issue back before the voters and reverse Prop. 8. The November 2010 election was the next opportunity, but after considerable internal debate, that date was dismissed as premature except by the most aggressive activists. An attempt to gather signatures for a 2010 repeal fizzled when donors scoffed at the idea.

Attention turned to 2012, when President Obama would be back on the ballot, turnout would be high, and the conditions would be better for repealing Prop. 8.But now there was another problem. Under the best conditions, qualifying an amendment for the ballot, waging a sophisticated campaign in several major media markets, reaching voters in a state with forty million inhabitants, and getting a majority of them to vote “yes” for gay marriage, would require thousands of volunteers, a sophisticated campaign organization, and millions of dollars in donations.

Yet the Perry litigation has sapped enthusiasm for a 2012 repeal of Prop. 8. Large donors, essential to any such effort, will not give because they expect that courts will hold Prop. 8 unconstitutional, bringing gay marriage back to the state and perhaps to the entire country. (And even if savvy donors don't believe Perry will ultimately be successful in the courts, the existence of the litigation is a good excuse to hold off.) Why spend the money when courts may well take care of the problem? They have adopted a wait-and-see approach: we'll see what happens and then consider whether to donate. Some of these donors have chosen to fund the litigation rather than a repeal campaign. Some are simply staying on the sidelines.

As the Perry case has begun to drag out, now involving the California Supreme Court and focusing on preliminary issues like standing, the delay is proving deadly to any 2012 ballot fight. The voter signatures to qualify an amendment to the ballot would have to be gathered in early 2012, which means that a campaign structure would have to be put in place and partially funded before then. Since there is no chance of a definitive resolution of the case before early 2012, there is now very little chance that there will be a serious repeal effort in the fall of 2012.

That means that a repeal would have to be put off until 2014, by which time we might have some resolution of the litigation. If the litigation is unresolved, there would be additional pressure for delay by large donors. If the litigation is successful (at least in bringing back SSM to California), then there's no need for a campaign, of course. But suppose the litigation fails, either in the Ninth Circuit or at the Supreme Court. What then? A judgment might plausibly be made that a mid-term election is not the best time to bring gay marriage back to the ballot and that the risk of a second loss in California, which would be devastating, is too great. At that point, the next window of election opportunity would be 2016, a full eight years after the passage of Prop. 8. Additionally, a defeat in the courts would cast a pall over post-litigation political efforts, weakening the morale of gay-marriage supporters and undermining whatever persuasive power might be left to the constitutional-rights argument.

Perry was always a bet. It was a bet that the votes would be there on the Supreme Court when it reached that point, as it would if the litigation were successful below. When the Perry case was filed, the national gay civil rights and legal organizations believed it was a bad bet. So they opposed it. At the same time, there's no doubt that the lawyers attacking Prop. 8 have handled the case very skillfully. Their labors have so far produced a victory in a San Francisco district court, the first win for gay marriage in a federal forum. I have suggested here that, as a political matter, the litigation has not generated the hoped-for public awareness and has actually retarded efforts to repeal Prop. 8 at the ballot box. In sum, the bet doesn't look any better now than it did in 2009 when the litigation was filed. And the case has clouded the political picture in California. For gay-marriage advocates, the bet may yet pay off in a very big way, but the costs are rising.

Upcoming Oral Arguments

3/31Kimble v. Marvel Enterprises, Inc. Whether the Court should overrule Brulotte v. Thys Co., which held that “a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se”.

4/20Johnson v. United States Whether possession of a short-barreled shotgun is a violent felony, leading to a longer prison term as a career criminal.

4/21McFadden v. United States A federal prosecutor’s duty to prove that a suspect knew that a substance was an illegal substitute for a banned drug.

4/22Horne v. Department of Agriculture The federal government’s duty to pay raisin growers for an order requiring removal of part of a year’s crop from the market to stabilize prices.

On Monday afternoon Justices Anthony Kennedy and Stephen Breyer testified before the House Appropriations Committee. The purpose of the hearing was to discuss the Court’s budget for the next fiscal year and the federal judiciary, but the legislators also took full advantage of the occasion to touch on other topics as well.